The opinion of the court was delivered by: Goettel, District Judge:
This case presents the question of whether a student should
have been admitted to the National Honor Society chapter of his
high school. As federal rights protected by both the first and
the fourteenth amendment have allegedly been violated, this
court must reluctantly project its opinion into a dispute
distinctly within the realm of local educational authorities.
There is no question that Justin Dangler is a bright, capable
teenager. In three years at Yorktown High School, he has
maintained a near "A" average. Additionally, he participates in
a number of extracurricular activities including the school
newspaper, the student senate, local political campaigns, and
Future Business Leaders of America, along with working at
part-time jobs. The record contains glowing testimonials to
As a high school junior, Justin was eligible to be considered
for membership in the Yorktown High School chapter of the
National Honor Society ("NHS"). To be so eligible, a student
must be a junior or senior and have maintained at least a 3.5
out of a possible 4.0 average. The student's application must
then be approved by a majority of the five member faculty
council appointed annually by the high school principal to
evaluate candidates. In addition scholarship, "[s]election . .
. is based on outstanding character, leadership, and service."
Constitution of the Yorktown High School National Honor
Society, Article VII, § 1 (emphasis in original). In addition,
the Bylaws of the Yorktown Chapter state that "[t]he National
Honor Society exemplifies the qualities of honor and character"
and specifically state that a student is ineligible if he or
she does not exhibit exemplary character, has been caught
cheating or flagrantly violating school rules. These guidelines
make clear that character should be heavily weighted in the
assessment of a student by the faculty council.
Justin, possessing a 3.93 average, applied for membership in
the NHS. His application was denied although no reason was
initially provided. The rejection letter, written by the
advisor to the NHS, advised him that he would eligible for
consideration again in the Fall of 1991 and urged that he
"strive to attain a high quality of character, leadership and
service." He was invited to contact the advisor with any
questions. Letter from Kathy Belardo to Justin Dangler (March
25, 1991). Later correspondence informed his parents that
Justin could confer with the advisor to identify areas of
deficiency in order to work toward improvement so that he could
successfully pass the next application screening.
Justin's parents did not sit still for this rejection.*fn1
His father first wrote to the
high school principal, defendant Michael Frischman, requesting
review of the council's rejection. Frischman denied his request
for intervention, finding "that the Selection Committee adhered
closely to all guidelines for selection found in the National
Honor Society Handbook . . . [and] that the members of the
Selection Committee exercised their discretion in a legitimate
manner, and with the good faith expected of them." Letter from
Michael Frischman to Richard Dangler (April 10, 1991). Mr.
Dangler next wrote to the superintendent of schools, John V.
Doherty, requesting review of the council's decision. Doherty
declined to review the decision on the basis that the high
school principal has the final say in matters relating to
application to the NHS. He also sent to Mr. Dangler copies of
the rating sheets prepared by faculty members and copies of
disciplinary referrals in Justin's file. Mr. Dangler was
invited to review Justin's cumulative folder and health records
kept on file at the high school. Carol Ross, the Assistant
Superintendent for Secondary Schools, reviewed the procedure
used by the principal in conducting the appeal in the high
school and informed Mr. Dangler that the review was
comprehensive and appropriate to the matter. Letter from Carol
Ross to Richard Dangler (May 1, 1991).
After reviewing his son's files, Mr. Dangler wrote back to
Doherty requesting that ten disciplinary records be removed
from his son's school files because they were erroneous. These
records included six cutting class referrals, one referral for
calling two school secretaries "assholes", and referrals for
leaving class inappropriately. The high school principal wrote
to Mr. Dangler indicating that the six cutting referrals were
removed from Justin's file, leaving four disciplinary referrals
still in his record.
Mr. Dangler was still dissatisfied. He wrote to Doherty
again, asking that Justin's admission to the NHS be facilitated
because the existence of the six cutting referrals was a
substantial part of the record on which Justin's application
was considered. No response was apparently made.
Lisa Dangler, Justin's mother, then filed this suit on behalf
of her son seeking, among other things, to enjoin the
defendants from excluding him from the NHS. The complaint
alleges that Justin was deprived of property without due
process of law in retaliation for his and his father's exercise
of their first amendment rights.
Before us now is plaintiff's motion for a preliminary
injunction to compel the school authorities to admit Justin
into the NHS.
A preliminary injunction is an extraordinary remedy not to be
routinely granted. Patton v. Dole, 806 F.2d 24, 28 (2d Cir.
1986). The general standard for granting such relief in this
circuit is well settled: to justify the issuance of an
injunction, the plaintiff must show "(a) irreparable harm and
(b) either (1) likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make them
a fair ground for litigation and a balance of hardships tipping